Investigation by a subordinate officer in a case detected by a superior officer creates bias, and unexplained delays in investigation undermine the prosecution's case.

O R D E R

This revision petition is filed under Section 397 r/w Section 401 of the Code of Criminal Procedure, 1973 , by the accused in S.C.No.251 of 2011 on the file of the Court of Sessions, Kasaragod Division. As per the judgment dated 04.10.2013 passed by the Assistant Sessions Judge, the petitioner was convicted and sentenced to undergo simple imprisonment for two years and to pay fine of Rs.1,00,000/- for the offence under Section 8 (2) of the Abkari Act . In default of payment of fine, he was directed to undergo further imprisonment for a period of three months. Challenging the conviction and sentence, the petitioner filed Crl.Appeal No.158 of 2013, wherein as per judgment dated 17.10.2014, the Additional Sessions Judge-I, Kasargod, confirmed the conviction but modified the sentence directing him to undergo simple imprisonment for one year and to pay the fine of Rs.1,00,000/- imposed by the trial court. The default sentence was maintained in the appeal judgment also. Being aggrieved, the petitioner is now before this Court with the above revision petition. For convenience, the parties are referred in this order as they were before the trial court.

2. The prosecution case is that on 19.09.2007, at about 6.30 hours the accused was found carrying a white plastic sack containing 100 packets of arrack, each measuring 100 ml by the side of a public road. The accused was apprehended by PW1 Circle Inspector of Excise and after complying with the procedural formalities such as drawing of samples, preparation of mahazar, etc. The accused was arrested from the spot and he was later produced before the jurisdictional Court and was remanded in Judicial custody.

3. On completion of the investigation, PW6, the Asst. Excise Inspector filed the final report before the Judicial First Class Magistrate-I, Kasaragod, and it was taken cognizance as C.P.No.67 of 2011. On appearance of the accused, the learned Magistrate, after complying with the legal formalities as contemplated under Section 207 Cr.P.C , committed the case to the Sessions Division under Section 209 of Cr.P.C . The Sessions Judge made over the case to the Court of Assistant Sessions, wherein the accused faced the trial.

4. From the side of the prosecution, PWs 1 to 6 were examined and Exts.P1 to P11 documents were marked. On completion of prosecution evidence the accused was examined under Section 313 Cr.P.C . He denied all the incriminating evidence brought out in the prosecution evidence. Having found the case unfit for acquittal under Section 232 Cr.P.C , it was posted for defence evidence. However, no defence evidence was adduced from the side of the accused. After hearing both sides, the learned Assistant Sessions Judge passed the impugned judgment as said above. The appeal filed by the accused also ended with a partial modification of the sentence alone.

5. Heard the learned counsel for the accused and the learned Public Prosecutor.

6. The learned counsel for the accused vehemently argued that the investigation of the offence was conducted by an officer holding a lower post than that of the detecting officer and hence prejudice is caused to the accused. Moreover, there is a delay of 3 years in starting the investigation, which is also fatal to the prosecution. It is also pointed out by the learned counsel for the accused that in the property list submitted before the court, no specimen seal is affixed by the detecting officer or the investigating officer. Moreover, though samples were entrusted to the Excise Guard from the court on 19.09.2007, it reached the Chemical Examination Laboratory only on 17.10.2007. This delay is also not properly explained by the prosecution. Ext.P9 inventory was certified by the learned Magistrate on 31.10.2007. Who was in custody of the property till that day is also not explained by the prosecution. Therefore according to the learned counsel, the petitioner/accused is entitled for benefit of reasonable doubt.

7. On the other hand, the le